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At a Glance:
Boenig v. Starnair, Inc.
February 19, 2009
283 S.W.3d 444
Published Opinion

Boenig v. Starnair, Inc.

Court of Appeals of Texas,

Fort Worth.

Anne BOENIG, Appellant


STARNAIR, INC., Appellee.

No. 2–08–175–CV.


Feb. 19, 2009.

Attorneys & Firms

*445 Melody T. Mills, Denton, for Appellant.

Chris R. Norris, The Barbknecht Firm, P.C., Plano, for Appellee.

PANEL: DIXON W. HOLMAN, J. (Senior Justice, Retired, Sitting by Assignment).




Appellant Anne Boenig appeals from the trial court’s order granting the motion for summary judgment of Appellee StarnAir, Inc. The issue we address in this opinion is whether a claimant is time-barred from joining in a lawsuit a person designated as a responsible third party pursuant to § 33.004(e) (Vernon 2008). Because we conclude that the legislature did not intend that this particular claim be barred, we will reverse and remand.


In September 1995, Pulte Homes of Texas, L.P. substantially completed the construction of a residential home located at 1112 Raleigh Drive, Lewisville, Texas. Pulte had hired StarnAir as a subcontractor to perform the heating, ventilation, and air conditioning installation for the house. StarnAir substantially completed its portion of the work on the house in July 1995.

Boenig sued Pulte in November 2005 for injuries that she allegedly sustained when—at the Raleigh Drive house—she fell through the attic floor and into the living room area on the first floor.1 Boenig did not sue StarnAir at the time. On July 19, 2007, Pulte filed a motion for leave to designate StarnAir as a responsible third party. On August 23, 2007, Boenig filed her fourth amended petition, in which she joined StarnAir as a defendant. The trial court later granted Pulte’s motion for leave to designate StarnAir as a responsible third party on October 31, 2007. StarnAir filed its motion for summary judgment in February 2008, arguing that the ten-year repose period set forth in civil practice and remedies code section 16.009 barred Boenig from asserting against it a personal injury claim based on alleged construction defects because twelve years had elapsed since StarnAir substantially completed the house’s improvements. The trial *446 court granted StarnAir’s motion for summary judgment.


In her sole issue, Boenig argues that the trial court erred by granting StarnAir’s motion for summary judgment. She contends that section 16.009’s “limitations period.”

StarnAir responds that section 33.004(e) addresses only “limitations,” not “statutes of repose.” Under its construction of the relevant statutes, StarnAir argues that because it substantially completed its portion of the work on the Raleigh Drive house in July 1995, any claim against it must have been brought not later than July 2005, ten years later. Consequently, according to StarnAir, because Boenig failed to assert a claim against StarnAir within the prescribed ten-year statute of repose, Boenig’s claims are barred as a matter of law.

A. Standard of Review

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

B. Rules of Statutory Construction

Our resolution of this specific issue, which presents a question of law that we review de novo, involves application of well-established rules of statutory construction. Tex. Gov’t Code Ann. § 311.011(b).

Further, we must read the statute as whole and not just isolated portions. Tex. Gov’t Code Ann. § 311.023(1), (5). In enacting a statute, it is presumed that a just and reasonable result is intended. Id. § 311.021(3).

C. The Legislature Intended that Section 33.004(e)

Civil practice and remedies code chapter 33, subchapter A sets forth Texas’s proportionate responsibility scheme. Section 33.004(e) provides as follows:

If a person is designated under this section as a responsible third party, a claimant is not barred by limitations from seeking to join that person, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join that person not later than 60 days after that person is designated as a responsible third party.

Id. § 33.004(e) (emphasis added).

Civil practice and remedies code chapter 16, subchapter A sets forth statutes of limitations and repose. Id. §§ 16.001–.012 (Vernon 2002). Section 16.009 provides in part (a) as follows:

A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.

Id. § 16.009(a) (emphasis added). Fuentes v. Cont’l Conveyor & *448 Equip. Co., Inc., 63 S.W.3d 518, 520 (Tex.App.-Eastland 2001, pet. denied).

Utilizing the rules of statutory construction set out above, we first examine the plain language of section 33.004(e).

Reading the statutes as a whole, we now look to other relevant statutes for additional guidance. Section 33.002 is part of the same subchapter as section 33.004(e) appears to be specifically applicable to Boenig’s claims against StarnAir.

section 33.004(e) is not specifically inapplicable to Boenig’s claim against StarnAir.

The legislature specifically designated only section 16.011 as a statute of repose. Subsection (c) of section 16.011 states, “This section is a statute of repose and is independent of any other limitations period.” Id. § 16.011(c). Section 16.009 contains no similar provision specifically identifying it as a statute of repose that is “independent of any other limitations period.” Id. § 16.009.

StarnAir contends that the legislature’s exclusion of the term “repose” from Gray, 259 S.W.3d at 291.

Further, the legislature included section 33.004(e) for the purpose of referring to each of the ‘limitations’ periods listed in [CPRC] Chapter 16....”).

With the exception of its argument that section 33.004(e)’s applicability to claims involving persons furnishing construction or repair of improvements.

StarnAir states that the responsible third party statute was “designed to reduce the likelihood that a defendant will be found jointly and severally liable.” It points out that Boenig’s “arguments fail to *450 address the fact that even if the statute of repose prevents [Boenig] from joining StarnAir as a party-defendant to the lawsuit, StarnAir will remain designated as a responsible third party and therefore the jury will remain able to apportion fault to StarnAir.” This, according to StarnAir, is “precisely the purpose of [s]ection 33.004(e).” We disagree that this is “precisely” the purpose of section 33.004(e) nonetheless addresses the issue of limitations in anticipation of a claimant’s attempted joinder of a responsible third party.

StarnAir argues that Boenig’s proposed construction of the relevant statutes “would effectively abolish every statute of repose within Chapter 16” of the civil practice and remedies code. The argument is inaccurate as stated. A claimant must still bring a suit for damages under section 16.009 not later than ten years after the substantial completion of the improvement. StarnAir’s argument fails to recognize the distinction between a defendant who has not previously been designated as a responsible third party and is timely directly sued at some point during the ten-year “limitations period” and a defendant who has previously been designated as a responsible third party and is subsequently joined in the suit at some point during or after the “limitations period.”

While we disagree with StarnAir’s general “abolishment” argument, interpreting section 33.004(e)’s savings provision. Accordingly, we hold that the trial court erred by granting summary judgment in favor of StarnAir. We sustain Boenig’s issue.


Having sustained Boenig’s sole issue, we reverse the trial court’s order granting final summary judgment in favor of StarnAir and remand the case to the trial court.



Whether Boenig timely filed suit against Pulte is not at issue in this appeal.


Boenig asserted negligence, premises defect, and product liability claims against StarnAir in her fourth amended petition.


See generally I–Gotcha, Inc. v. McInnis, 903 S.W.2d 829, 840 (Tex.App.-Fort Worth 1995, writ denied) (stating that because comparative responsibility applies to Dram Shop Act claims but not to a claim for punitive damages, amount of punitive damages does not have to be reduced by the percentage responsibility the jury attributed to the injured party).


Section 16.009(d) provides, “If the damage, injury, or death occurs during the 10th year of the limitations period, the claimant may bring suit not later than two years after the day the cause of action accrues.” Id. § 16.009(d) (emphasis added).


See Reames v. Hawthorne–Seving, Inc., 949 S.W.2d 758, 761 (Tex.App.-Dallas 1997, pet. denied).

End of Document